In 1980, the Supreme Court held that a prohibition on commercial speech is subject to intermediate scrutiny. Roughly five years later, in Zauderer, the Court provided guidance on specific instances in which the government may compel commercial speech. The Court held that a requirement that goods or services disclose “factual and uncontroversial” information is constitutional so long as the requirement is not unduly burdensome, and the requirement is “reasonably related to the State’s interest in preventing deception of consumers.” This holding applied a rational basis standard of review to compelled commercial speech aimed at curing deception of consumers.
Despite this guidance, since the Zauderer decision, federal appellate courts have applied the holding inconsistently—some courts have limited Zauderer’s rational basis application to compelled commercial speech disclosures that are “factual and uncontroversial” and cure deception of consumers; while other courts have applied it to all compelled commercial speech disclosures that are “factual and uncontroversial” regardless of whether the speech cures deception of consumers. This Comment advocates to limit the rational basis standard of review to compelled commercial speech disclosures that are “factual and uncontroversial” and cure deception of consumers. The alternative, applying rational basis to large swaths of disclosures, may lead to drowning out important information or bolstering ideological beliefs because there will always be a legitimate government interest to compel, i.e. the consumer “right to know.” Commercial speech is protected speech, and the First Amendment protects against speech compulsions just as it protects against speech prohibitions. Limiting the application of Zauderer would ensure that only legitimate and beneficial disclosures are compelled, and that First Amendment protections are not abridged.
Compelled Commercial Disclosures: Zauderer’s Application to Non-Misleading Commercial Speech,
72 U. Mia. L. Rev.
Available at: https://repository.law.miami.edu/umlr/vol72/iss4/9